The Role of State Constitutions in Protecting ... - International IDEA

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The mere description of the Australian model for dividing federal power makes it sound as if it favors the States, as indeed it was expected to do. In practice, however, power has gradually shifted to the Commonwealth, largely through judicial interpretation, but in a manner that seems to have reflected the changing needs and circumstances of the Australian people. Australia is not unique in this regard; a similar pattern of growth of central power can be seen in, for example, the United States (US), which divides federal power in the same way. The US and Australian experience suggests that, if particular powers need to be guaranteed to the States in a federation in Burma, the Constitution should expressly say so by, for example, providing a list of exclusive State powers. It might be helpful to give an example of how the division of powers works in the Australian federation. One of the legislative powers given to the Commonwealth by the Constitution is a power to make laws with respect to “external affairs”. The High Court has held that this enables the Commonwealth Parliament to incorporate into Australian law any international treaty to which Australia is a party. Some of these treaties deal with matters otherwise within State power; the environment is an example. By relying on the external affairs power, the Commonwealth Parliament therefore can make laws on matters that the States had previously thought were their responsibility. Moreover, the decision to sign and ratify a treaty is an executive decision, which falls within Commonwealth executive power. Any legal dispute arising under a Commonwealth law incorporating a treaty involves federal judicial power and will be dealt with in Commonwealth courts unless the Commonwealth Parliament has given jurisdiction to the State courts. The particular powers given to the Commonwealth The Australian Constitution gives 40 legislative powers to the Commonwealth Parliament. Within this list, it is possible to identify particular categories of powers, as follows: ◆ ◆ ◆ External affairs and associated matters (for example, relations with the islands of the Pacific; quarantine; the influx of criminals) Defense, including maintenance of the defense forces, which effectively is an exclusive Commonwealth power, under section 114. The Commonwealth has an obligation to defend the States, under section 119. By contrast, the general police force is a State responsibility; while there is a federal police force, it deals only with criminal matters arising under Commonwealth law (for example, offences dealing with the importation of drugs). Commercial matters: interstate and overseas trade; banking; insurance; weights and measures; currency and coinage (effectively also exclusive, under section 114); foreign, trading and financial corporations. 36
◆ A few social powers, although these are the exception rather than the rule; in particular, marriage and divorce and the power in section 51(23A) to make certain welfare payments. Grouped in that way, it is possible to understand the logic underlying the allocation of most of these powers to the Commonwealth. As a generalization, the Commonwealth was given powers that could not be handled adequately within State borders, particularly if, as was the case in Australia, federation was intended to establish a national common market. As originally conceived, the Australian federal model left to the States all or most of the powers necessary to run their own communities. Important powers left to the States included, for example: ◆ ◆ ◆ ◆ ◆ Health, education, housing and intrastate transport Land, agriculture and natural resources. Section 51(31) of the Constitution also ensures that the Commonwealth cannot acquire property, from the States or anyone else, without providing “just terms”. Local government. Civil liberties and human rights Environment In practice, however, it has proved almost impossible for Commonwealth and State powers to be exercised in isolation from each other. The area of health provides an obvious example. The States have power in relation to hospitals and health services. The Commonwealth has power in relation to health insurance and medical benefits. Clearly it is not possible for these two sets of powers to be exercised completely independently. As a result, health and hospitals are now managed through a complex intergovernmental scheme. Another complication for the federal division of powers is that matters that in 1901 were seen as purely a State concern gradually have developed a national dimension. Human rights and the environment are obvious examples. Another, less obvious example is education. Education traditionally is considered to be a sub national power in a federal system. On the other hand, there are aspects of education that now have some relevance for areas of national power. A skilled and educated workforce, for example, has significance for national economic management. The Australian Constitution has proved difficult to change and there have been relatively few changes to the list of Commonwealth powers. As mentioned earlier, judicial interpretation has enabled the Commonwealth to expand into some areas of purely State concern. Thus the interpretation of the external affairs power now enables the Commonwealth to make laws in relation to human rights and some aspects of the environment. Other areas in which the Commonwealth lacks power but in which a national response is needed are often handled through co-operation between the Commonwealth and the States. 37
Page 1 and 2: REPORT The Role of State Constituti
Page 3 and 4: Executive Summary Executive Summary
Page 5 and 6: He stressed the need for Burmese to
Page 7 and 8: nurturing accommodations. These cro
Page 9 and 10: Nigeria’s history of constitution
Page 11 and 12: Is a census important? A proper cen
Page 13 and 14: senior positions and this has helpe
Page 15 and 16: BURMA: STATE CONSTITUTIONS AND THE
Page 17 and 18: The 1947 Union Constitution, which
Page 19 and 20: It may not be enough therefore to a
Page 21 and 22: the Karen and other minorities were
Page 23 and 24: ◆ exact outcome is determined by
Page 25 and 26: divisions in India is such that it
Page 27 and 28: All minorities, whether based on re
Page 29 and 30: the exceptions from the traditional
Page 31 and 32: AUSTRALIAN FEDERALISM, STATE CONSTI
Page 33 and 34: Once the draft Australian federal C
Page 35 and 36: federation, and of the accommodatio
Page 37: minority rights. The Australian fed
Page 41 and 42: dependent than ever on revenue redi
Page 43 and 44: The situation began to change in th
Page 45 and 46: NIGERIA’S EXPERIENCE IN MANAGING
Page 47 and 48: emaining twenty four were indirectl
Page 49 and 50: …federalism include: • The need
Page 51 and 52: almajirai, 31 security inadequacy,
Page 53 and 54: ◆ Constitutional prohibition of S
Page 55 and 56: List of Participating Groups: The w

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